Water to the people

I hadn’t realized until I got an (en masse)
email from Senator Mark Udall recently, that we’re celebrating
water in Colorado this year. He and Sen. Michael Bennet introduced a
resolution in May recognizing 2012 as the “Year of Water.”
The declaration piggybacks on governor Hickenlooper’s “Colorado Water 2012” initiative which, among the goals of reminding citizens that
water is liquid gold here, is intended to “motivate Coloradans to become
proactive participants in Colorado’s water future.”

It may not be quite what those politicians had
in mind, but two motivated Coloradans have made news recently with
controversial proposals to amend the state constitution in a way that would
dramatically change water management in the state, valuing public use over
private and limiting water diversions that negatively affect public uses. Phil
Doe of Littleton and Richard Hamilton of Fairplay have introduced Public
Trust Initiatives #3 and #45.

The first measure would apply the common-law doctrine of
“public trust” to water rights, and make “public ownership of such water
legally superior to water rights, contracts, and property law.” Initiative 3
would also grant unrestricted public access to natural streams and their banks.

The second measure proposes to amend Article
XVI, Section 6 of the state
constitution, which talks about the diversion of un-appropriated waters of
natural streams. Initiative 45 seeks to limit, and possibly prohibit, stream
diversions that would “irreparably harm the public ownership interest in
water.”

In April, the Colorado Supreme Court cleared
the way for the initiatives to proceed and, two weeks ago, the Colorado
Secretary of State posted the final forms for Doe and Hamilton to
be able to begin collecting signatures. In order for them to
appear on the November ballot, each initiative must wrangle 86,000 valid signatures
by August 6. Those are big hurdles to clear, but even the discussion around the
measures merits some examination.

Proponents of the two initiatives insist that
we’re at a crossroads in water control in this state, and that preparation for
future strictures posed by, for example, climate change and increased fracking require
that a stand be taken for public governance of our most valuable natural
resource. Opponents counter that the initiatives are a slash-and-burn assault
on uses like agriculture, and that they would invalidate prior, vested water
rights, which have been in place since Colorado became a state.

I tend to agree with the latter if only
because the initiatives aim to drain the baby with the bathwater. But what’s spot-on about them, and
what’s wrong with water allocation in Colorado compared to every other Western
state, is that the public interest is not well represented in water law
here. That needs to be
improved.

Over 150 years ago, miners
hacking away at Colorado’s mountainsides realized that the common law riparian
system in place back East was fairly useless to them. They needed a lot of
water in a dry land and, as demand grew, they applied the same rules that
governed mineral allocation—you get to it first and use it in an approved way,
it’s yours. From there, Western water law evolved toward guarding private
interests and away from protecting public rights. While we now live in a vastly
changed landscape, this “first in time, first in right” or “prior
appropriation” doctrine remains the law of the land.

Every Western state has language in its
constitution or statute declaring that water is publicly-owned. All but
Colorado make it clear that water allocation decisions should be made only
after considering the public interest. Those other states have the right and
arguably the responsibility to regulate water for public benefit—be that
aesthetic, recreational, biological, economic or other. While states often
seriously downplay this priority, or argue over the meaning of “public
interest” (as those values shift over time), at least there exists some ground
on which to balance private uses.

The initiatives acknowledge that, especially
as supplies decline, there needs to be a public interest standard which limits
diversions and consumptive uses that endanger the public interest. Currently,
roughly 88 percent
of Colorado’s water flows to agriculture; 7 percent is used for toward industrial
and recreational pursuits, including snowmaking; and the rest is put to
municipal uses.

Efforts to recast the priorities currently
supported by Colorado law need to be part of our public dialogue and lead,
ultimately, to legislative reform. While the Colorado Supreme Court has ruled
that our state constitution lacks language requiring consideration of the public
interest, there are concepts that lay the groundwork for reform. Article
XVI, Section 5 emphasizes the importance of public ownership of stream water
and says it should “be dedicated to the use of the people of the state,” although it
concludes with the phrase “subject to appropriation.” Section 6 says: “The
right to divert the unappropriated waters of any natural stream to beneficial
uses shall never be denied.” Accounting for the robustness of waterways to
support fish and wildlife, or rafting and kayaking, and even power generation,
all amount to “beneficial uses” in the “public interest.”

There has been a promising agreement penned
recently that may set a precedent for collaboration. The proposed Colorado
River Cooperative Agreement, which
brings together 40 entities including Denver Water and Grand
and Summit counties, took years of negotiations and addresses decades-old
conflicts from both sides of the Divide over water in the Colorado River basin.
The so-called “historic”
agreement provides for, “Additional water supply for those who live, work
and play on the West Slope and for customers of Denver Water.” It also focuses
on improving the environmental health of our rivers and streams.

In that email I got from Udall, he refers to
the weathered adage, “Whiskey is for drinking, water is for fighting.” Water is
our deliverance in the West, but it can also imprison us. Establishing a new
give-and-take that considers the public foremost will not be easy, but it is
possible.

Essays in the Range blog are not written by High Country News. The authors are solely responsible for their content.

Heather Hansen is an environmental journalist working with the Red Lodge Clearinghouse /Natural Resources Law Center at CU Boulder, to help raise awareness of natural resource issues.

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Great article. In your opinion - how likely is this set of initiatives to pass through? From my (limited) understanding of western water law, if these were to pass wouldn't it throw the rest of the CO basin into disarray? Or do the initatives provide for continued provision of the other state's allocations downstream?

Red Lodge

Jun 07, 2012 03:45 PM

Patrick - Thanks for taking the time to ask some important questions.

Indeed, the initiatives would throw the entire current system of allocation into disarray. Which is why opposition to it has been fierce - last week the Colorado Water Congress introduced a resolution opposing both measures, saying they are, "unwise, unnecessary, disruptive to the fair and responsible allocation and stewardship of Colorado’s scarce water resources, and an unwarranted taking of vested property interests." It's been described by Western Resource Advocates as "extreme" and "reckless."

That said, the signature requirement to get the initiatives on the ballot is an immense challenge and will most likely not be met. This is, however, the third time Doe and Hamilton have proposed these particular initiatives and public awareness is growing, as is the knowledge that competition for this waning resource will only intensify in time.

~Heather Hansen

Patrick Keys

Jun 07, 2012 06:19 PM

Thanks for the quick reply. I'm curious about whether the Colorado Water Congress thinks that the current status quo represents a "fair and responsible allocation and stewardship of Colorado's scarce water resources." The fact that Western Resource Advocates thinks its both extreme and reckless tells me that it must in fact be both extreme and reckless, but are WRA advocating for the status quo or a different, less reckless, change?